Once in awhile you'll come across someone that wants to disinherit their spouse. Sometimes it isn't done with ill-will. For example, maybe it is a second marriage situation and both spouses decide they don't need to leave anything for the survivor. Sometimes it is ill will.

The general rule is that you can only disinherit your spouse if he or she agrees to it. In other words, a surviving spouse can choose (elect) after your death to basically ignore your will or trust that doesn't provide for that surviving spouse, and have basically a third of your estate go to them. For example, if you left your entire estate to your children and not your spouse, your spouse can say "wait a second. I don't like that idea. I'll take one-third of the estate thank you very much." And believe it or not, money can make people change their minds.

For a while, individuals were using trusts to get around this "election against the will", but eventually the Iowa laws corrected that "end around" planning. But now, a recent ruling out of an Iowa district court in Pottawattamie County created another option. In a December 2009 ruling, the district court permitted some bank accounts with a payable on death (POD)/ Transferrable on Death (TOD) designation to escape the spouse's ability to get the one-third elective share. The result, under this ruling, is that you can now disinherit your spouse by using the POD/TOD designation on these accounts. While this ruling is not the law of the state, the court creates a roadmap for a valid argument to properly disinherit your spouse.

TOD and POD accounts are very easy and flexible planning tools. In fact, they can be almost too easy. If this ruling continues to stand, it may result in some unintended consequences contrary to the intent of the spousal election laws. The court places the burden on the Iowa legislature to correct the statute if they don't want this type of "loophole". Time will tell.

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Comments (4)Read through and enter the discussion with the form at the end

T. Intent -
August 12, 2010 4:32 PM

Has anyone made this type of argument in a case where the surviving spouse was the beneficiary of life insurance policies that were greater than their elective share amount?

Matt Gardner -
August 22, 2010 8:58 PM

Certainly the beneficiary designation provides some planning "options". As the life insurance passes "outside" the will, the right to elect against the will is unaffected. Some states have taken an expansive view of what the estate is for elective shares, including all assets, more or less, in determination of a spouse's share. In Iowa, court's have given the ability to plan around the elective share.

CJ Davis -
April 26, 2011 2:49 PM

What about assets that were previously inherited by the decendent? I have read that in divorce, inherited assets are protected and as long as they were held separately the spouse could get a share. If assets were inherited and held separately from the spouse, and the will provided that all assets were to pass to the decedent's children, could the spouse still claim 1/3?
To take it to another level - what about if the children were from a previous marriage? Also, what if the decedent and spouse were separated (but not divorced) at time of death?

Protection of assets in a divorce are different rules than preservation of assets at death. So yes, the spouse could still claim 1/3 of that inheritance. There are planning options available to avoid that scenario. The Iowa Code provides certain protected rights for surviving spouses, regardless of children from prior marriages or separated spouses.

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